Up 63% on a Filibuster

Listen. I know a lot of you are annoyed or lose interest when I stray from personal finance. I mean, it’s one thing to stray to write about interesting vegetables, quite another for me to mount my political soap box and decry the Bush economic policies that, I think – but some of you don’t – are just tragically misguided.

That’s one reason I do try my best to suggest what I think could be a helpful investment idea from time to time – not that there’s ANY assurance of success. But the little batch of stocks I suggested last July is up 38% or so, and the even littler batch of bio-techs from last September is up 63%, and I can’t find other batches I’ve suggested that have gone down dramatically (please do not be shy about refreshing my selective memory, which I promise to share with the group) . . . and, truthfully, this makes me quite nervous because, as I’ve mentioned in the past, it’s just when one begins to think one is given to occasional spasms of reasonably good judgment, that the market – which is smarter than any of us, believe me – whips around and bites one in the butt.

The point is, I’m not insensitive to the views of people like Donald, who wrote me earlier this week, ‘Your columns are beginning to suck.’

But how can I write about vegetables (I still owe you a column on radishes), when I think this country we all love so dearly is taking wrong turn after wrong turn.

(We really want to favor the tobacco industry over the desires of 191 nations for world health? We really want to borrow trillions of dollars from future generations to finance tax cuts for people who least need them? We really want to erode the separation of church and state?)

It is in that spirit, and for those of you with a little time this weekend and an interest in such things, that I offer you Ralph Naes’s latest memo with regard to the fight for the Judiciary. (Ralph heads People for the American Way.)

A lot of people don’t even know this fight is going on (which is fine with the Bushies, believe me), let alone know the details.

But the details are compelling, and the outcome will significantly impact the kind of country we become. And judges are appointed for life, so this can’t get fixed for a long, long time once it goes wrong.

So here’s Ralph. I have taken the liberty of highlighting in red a few phrases I thought might help to catch your eye. Have a great weekend.

The Senate Judiciary Committee’s Constitution, Civil Rights and Property Rights Subcommittee is holding a hearing today “to examine judicial nominations, filibusters, and the Constitution, focusing on when a majority is denied its right to consent.” It appears that the hearing is an effort to create the illusion of legitimacy for an outrageous scheme to eliminate an important check and balance on the administration’s court-packing efforts in advance of future vacancies on the Supreme Court.

Republican threats to “go nuclear” and put an end to long-established Senate practice, rules, and precedents are extraordinary in light of the success that President Bush has already had in making his mark on the federal judiciary. In the two years since President Bush named his first nominees to the federal bench, the U.S. Senate has confirmed 120 Bush judges, including 100 who were confirmed with the Senate and the Judiciary Committee under Democratic control. Since Republicans regained control of the Senate this year, Democrats have used the filibuster – a longstanding Senate procedure requiring a supermajority to cut off debate on important topics – to block only two controversial appeals court nominees, while a number of other nominees have been permitted a full floor vote in spite of intense opposition. Amidst the talk of crisis and a broken system, one important fact is being overlooked: there are currently only 49 vacancies in the federal judiciary, less than half of the 111 vacancies that existed when the Democrats took control of the Senate in July 2001.

In spite of the rapid approval rate for Bush’s judicial nominees, Republican leaders’ fury that even two nominees have been stopped by Democratic filibusters has led to a series of remarkable efforts to unilaterally change longstanding rules and to abrogate bipartisan agreements in order to undermine the ability of the minority party to provide any real check on the administration’s efforts to create a federal judiciary dominated by committed right-wing ideologues. Perhaps the most potentially far-reaching is the effort to declare the use of the filibuster to be unconstitutional when applied to judicial nominees.

The astonishing claim that the use of the filibuster is unconstitutional – although it has been used by Republicans and Democrats alike for decades – is a short-sighted strategy for undermining the Senate’s traditional role as the more deliberative House of Congress and for removing one of the only checks on the abuse of power by the majority Party, with respect to the issue of judicial nominations.

The Curious Champions of a Constitutional Right to a Senate Floor Vote

It is a remarkable display of hypocrisy for Republican leaders, including senators like Orrin Hatch, to suggest that use of the filibuster to prevent final votes on judicial nominees is unconstitutional. The historical record is clear that the filibuster has been used by both Republicans and Democrats with respect to controversial judicial nominations. In defending a Republican-led filibuster on a judicial nomination in 1994, Hatch himself explained that the filibuster is “one of the few tools the minority has to protect itself and those the minority represents.” Moreover, during the Clinton administration, Senate Republicans blocked dozens of Clinton nominees with much less open and accountable procedures like secret holds. Fully one-third of Clinton’s appeals court nominees from 1995 through 2000 were kept off the bench – many without even a hearing or committee vote – while others were delayed for as long as four years.

How can it be constitutional for a committee chair to stop a nominee by refusing to hold a hearing, or for a secret hold by a single Republican senatorto prevent a nominee from moving forward, but unconstitutional for 41 Democratic senators to prevent a final vote using a public Senate procedure specifically designed to protect the rights of the minority? It is clear that the answer has nothing to do with the Constitution and everything to do with the politics of power at all costs. It is simply amazing for Sen. Hatch and his colleagues to make this argument with a straight face.

Senate Majority Leader Bill Frist was among those voting against cloture on the nomination of Richard Paez in 2000. Yet now Frist says, “If filibusters are going to be made part of the judicial nominee process, I think you will see increasing discussion over whether the rules should be changed.” Frist and others have even suggested taking the constitutional question to the Supreme Court, a separation of powers nightmare that seems implausible at best. Former Senate Majority Leader Trent Lott has told reporters that he has devised a strategy that could bypass the filibuster and force approval of nominees with only 51 votes, describing his idea as “nuclear.”

Although Sen. Rick Santorum has suggested that the Democratic filibuster against Estrada “set a dangerous precedent” and that Democrats have “changed the rules,” it is clear that it is Republicans who are seeking to change the rules and make a dramatic break with history and Senate tradition. Republican Sen. Richard Lugar explained in 1993 that it is “a function of our Constitution that minorities are protected in many, many ways,” and that this is part of the rationale for the continued existence of the filibuster.

Some Republicans have wrongly asserted that there has been only one filibuster against a federal judicial nomination, the successful Republican filibuster of Supreme Court nominee Abe Fortas in 1968. In fact, cloture votes have been required to end debate on a number of judicial nominations. According to the Congressional Research Service, cloture motions have been filed and cloture votes held on 14 Court of Appeals nominations since 1980; as recently as 2000, cloture votes were necessary to obtain votes on the nominations of both Richard Paez and Marsha Berzon to the Ninth Circuit. Sen. Bob Smith openly declared he was leading a filibuster, and he described Sen. Sessions as a member of his filibuster coalition. Democrats have also demanded 60 votes for controversial nominees, such as Edward Carnes, who was nominated to the Court of Appeals for the 11th Circuit in 1992. Over the years, there were many other attempted filibusters that did not result in a cloture vote.

The current situation – with one party dominating the White House and Congress in spite of a narrowly divided national electorate – demonstrates why our constitutional framework was designed as a system of checks and balances. The filibuster is now virtually the only tool that Senate Democrats have at their disposal to try to force the administration and the Republican Senate majority to engage in bipartisan consultation, compromise, and cooperation on judicial nominations. If a demand for 60 votes is legitimate with respect to legislation that future Congresses can revisit, it is even more appropriate when considering lifetime appointments to powerful positions on the federal judiciary.

Historical Revisionism and Bogus Constitutional Theory

The primary legal theory being put forward by right-wing legal scholars and activists to support their claims rests on bad logic, bad law, and bad history. Conservative legal pundit Bruce Fein, scheduled to appear at Tuesday’s hearing, is among those arguing that requiring a supermajority to cut off debate on judicial nominations is impermissible. Such an interpretation defies the language of the Constitution and the history of the Senate.

In fact, Article I, Section 5 of the Constitution clearly states that each House of Congress would make its own rules. In some areas, the framers of the Constitution did take some matters out of the hands of Congress by requiring, for example, two-thirds of the Senate to approve international treaties. Requiring a majority vote to approve matters is in essence a parliamentary floor, not a ceiling. Nowhere in the Constitution is there a requirement for a simple majority for votes on nominations.

In fact, it wasn’t until 1917 that there was any way other than unanimous consent to cut off debate on issues, including judicial nominations, and bring them to a vote. In that year the very first cloture rule was adopted — two thirds of the Senate present and voting required to invoke cloture and force a vote on a measure. For the past 54 years, the Senate has required a super majority of the entire Senate (ranging from 3/5 to 2/3) to bring judicial nominations or legislation to a vote.

Never in our history as a nation have we authorized a simple majority to force a vote in the Senate on a judicial nomination or any other matter. There is certainly no justification for doing so now. The Senate was in fact designed to be the more deliberative body, where extended debate would be a check on potential abuses by the party in power. That characteristic of the Senate has often been lauded by conservatives in the past. Contrary to what George Will is suggesting now, in 1993 he wrote, “[T]he Senate is not obligated to jettison one of its defining characteristics, permissiveness regarding extended debate, in order to pander to the perception that the presidency is the sun around which all else in American government – even American life – orbits.”Back then Will also wrote that “Democracy is trivialized when reduced to simple majoritarianism – government by adding machine. A mature, nuanced democracy makes provision for respecting not mere numbers, but also intensity of feeling.” (Washington Post, April 25, 1993).

Although most observers consider it unlikely that the Supreme Court would accept a case about internal Senate rules, the Court did uphold the principle of supermajorities in a case involving local voting rules requiring a majority of 60 percent to pass a measure. The Court’s ruling stated: “Certainly any departure from strict majority rule gives disproportionate power to the minority. But there is nothing in the language of the Constitution, our history, or our cases that requires that a majority always prevail on every issue.” Gordon v. Lance, 403 U.S. 1 at 6 (1971)

As has been noted earlier, filibusters have been used by both Republicans and Democrats against judicial nominations and many types of legislation. During the Clinton administration, Republican senators filibustered a number of legislative initiatives, including an economic stimulus package, campaign finance reform, lobbying reform, health care reform, striker replacement legislation, and racial justice provisions in a crime bill. Would Republicans now argue that these efforts were unconstitutional because they are not explicitly permitted in the language of the Constitution?

The framers of the Constitution showed wisdom in specifying certain matters in which particular super majorities would be required and in all other areas allowing Congress to set its own rules. When Congress moved to create a rule that would create a mechanism to cut off debate – for the first time in 150 years – it did so in a manner that would maintain the Senate’s deliberative role and make it difficult for a narrow majority to abuse its power.

Other Examples of GOP Rule Changes and Power Plays

Senate Judiciary Committee Chairman Orrin Hatch is increasingly abusing the power of his chairmanship to flagrantly violate or unilaterally change longstanding committee rules and bipartisan agreements that govern the Judiciary Committee’s deliberative process. It is these actions by Sen. Hatch, not the Democrats’ legitimate use of the Senate’s filibuster procedure, that mark a dramatic break with precedent and an abandonment of a commitment to act fairly and according to mutually agreed-upon procedures. Several of Hatch’s actions also stand in direct contradiction to his own stated principles about how the Judiciary Committee should function.

Committee Rule IV

One of the most egregious abuses of power occurred on Thursday, February 27, when Hatch violated clear and explicit Judiciary Committee rules that prevent the Committee from moving to a final vote on any matter before the committee without the support of at least one member of the minority party. Over the strenuous objections of several Democratic Senators, Hatch insisted that the rule did not apply to nominations – a specious claim that had never been made before – and that he would call for a final vote on appeals court nominees Deborah Cook and John Roberts, even though no Democrats supported the motion to bring them to a vote. (In a compromise since then, another hearing was held for Roberts; Cook received a vote on the Senate floor without an additional hearing to review her record.)

Since then, Hatch has changed his explanation, claiming that Committee Rule IV does not apply to the Committee Chairman. He now claims in essence that the Chairman’s power to call for a vote on a matter is absolute regardless of agreed upon rules of procedure, and that Rule IV is actually a rule that gives members the right to push for a vote that is being delayed by the Chair.

Hatch’s claims are demonstrably false. As recently as 1997, in connection with the consideration of the nomination of Bill Lann Lee to be assistant attorney general, Hatch explicitly acknowledged that “[a]bsent the consent of a minority member of the Committee, a matter may not be brought to a vote.” (Transcript of Judiciary Committee meeting of November 13, 1997 at 6) (emphasis added) As Senate Minority Leader Tom Daschle wrote to Hatch on March 4, Rule IV “clearly establishes a Committee filibuster right.”

Blue Slip Policy

Hatch has also changed another fundamental Senate rule regarding judicial nominations. In the past, Hatch has been a fervent supporter of the Senate’s “blue slip” policy, which has allowed home-state senators who object to a judicial nominee to delay action in the Judiciary Committee by not returning a nominee’s “blue slip” to the committee. As American Prospect has noted,“it was Hatch, in 1995, who hardened the blue-slip policy to allow a single senator to block a nomination indefinitely.” Indeed, Sen. Hatch made his blue slip policy explicit in 1998 by stating on the blue slips themselves that “[n]o further proceedings on this nominee will be scheduled until both blue slips have been returned by the nominee’s home state senators.”

Now, however, Hatch has apparently declared a new policy saying that even though a senator’s decision not to return a blue slip would be given great weight, it would not be allowed to prevent Hatch from moving nominees he wants to move. “In other words,” says Hatch, “we can go ahead with certain nominees where you might have a withheld blue slip.” Sen. Barbara Boxer has objected to proceeding on controversial nominee Carolyn Kuhl, but Hatch has scheduled a committee vote on the nomination on Thursday, May 8.

Stacked Confirmation Hearings

Sen. Hatch held a single confirmation hearing featuring three controversial appeals court nominees simultaneously – Jeffrey Sutton, Deborah Cook, and John Roberts – on January 29. Scheduling multiple controversial appeals court nominees on a single day violated a longstanding bipartisan agreement. In the mid-1980s, Senators Strom Thurmond, Joseph Biden, Bob Dole, and Robert Byrd agreed in writing that there would be no more than one controversial nominee scheduled at any one time, an agreement that had been followed under both Republican and Democratic control until Hatch’s packed January 29th hearing.

Hatch’s move virtually assured that it would be impossible for senators to prepare thoroughly and for all three nominees to receive sufficient scrutiny. In fact, senators focused their questions on Sutton, meaning that nominees Roberts and Cook were asked very few questions. Hatch did provide another hearing for Roberts, but on May 5, Cook was confirmed by the full Senate, never having been subjected to serious public scrutiny, even though Democratic senators objected to the way she was railroaded through committee with the stacked hearing and Hatch’s violation of Rule IV.

Conclusion

The effort to create a constitutional objection to the selective use of the filibuster against extremist judicial nominees has no grounding in history or constitutional law. It is a power play that would subvert the Senate’s historical role, undermine its ability to conduct its advise and consent responsibilities, and open the door to further abuses of power by a narrow majority of the Senate.

The way to limit the time and energy expended in divisive confirmation battles is not a nakedly partisan power play that would alter the nature of the Senate in order to cement ideological domination of the judiciary for decades to come. The way forward is for the White House to engage in genuine consultation and cooperation on judicial nominations that would result in more mainstream nominees who could win bipartisan support.